"HIV is a virus, not a crime."

April 20, 2010 7:12 PM

With AIDS, Time to Get Beyond Blame. Criminal laws related to exposure to or transmission of HIV are on the books in 32 American states, and in many other countries. In January, Darrin Chiacchia was charged with knowingly exposing a partner to HIV without warning him beforehand. He faces up to 30 years in prison. The high profile case has drawn criticism of the laws from those who believe they discourage testing, increase stigma, and intentional infections are sensational but rare and difficult to prove. Others have argued the laws do little to protect vulnerable populations and are bad legal policy. In the sensational but rare category: Nushawn Williams, who completed his sentence last week but remains incarcerated.
posted by availablelight (70 comments total)

That NZ deliberate injection case referred to in the avert.org link was pretty disturbing all around.
posted by Paragon at 7:20 PM on April 20, 2010

I'm sorry, I don't understand the problem. Why am I supposed to be outraged at these laws? Chiacchia seems completely blasé about infecting someone else with HIV - from the NY Times article, he seemed far more concerned about his own reputation than the possibility that he might kill his boyfriend.

The reason these laws developed is because the courts had a hard time fitting this kind of case into the existing common law rules governing reckless endangerment and / or battery. The notion that people would rather continue to possibly infect others rather than know their status is disgusting. I don't understand it as a moral argument against these laws.

Finally, an anecdote. When I was younger, I asked my family doctor to give me an HIV test. He tried to discourage me, asking, "Why, what's the point? Will you stop having sex if you find out you're positive?" To which my answer was "Of COURSE I would. What's wrong with you?"
posted by 1adam12 at 7:31 PM on April 20, 2010 [8 favorites]

I understand this. I appreciate the argument. I don't the criminalization. I can see the creation of a stigma and...

But... when I was young, very young, and I no longer am even a little young, I watched a watched someone I loved (not a lover, a mentor, a friend) decay, wither, wilt and die. After that I tried to help others, I did, I tried. A person who was no longer even a friend but had been a lover (before he got ill, is it OK that I still think God for that? I don't know if it is.) went. I was not promiscuous in those days, or ever, but I was in what we now call the community (I'm not sure if we used that word then. It was long ago, and I was very young, and not only in that community, and...), but I knew people, I knew people that knew people. I was a plague. It was a time of fear. Fear and loathing, in it was mostly self loathing really. Really it was, we didn't agree with what 'those people' said about God's revenge, but what if, maybe...

And people, friends, lovers, ours... decayed, and withered, and wilted, and died. From a sniffle, a red spot on an arm, a white spot on a tongue? Pariaha - no, go, leave -- stay away.

But I understand, I accept -- but I don't. I just don't. Any thing else, no -- revenge is a useless, meaningless form of hate. For this? For those who do not care, those that would do this thing on purpose, or would not take care, who would not go into the woods and live as a hermit to kill this thing? I can't, I just can't accept it, I can't even answer the valid arguments. I'm sorry, but they are wrong. I can't
posted by Some1 at 7:37 PM on April 20, 2010 [4 favorites]

I do agree that I was unaware of the arguments against the laws until the op-eds started springing up around this case--the Nushawn Williams case and, even before that, the Kimberly Bergalis case were loud headlines I still remember.

I can understand the arguments against HIV specific laws, but I do cringe at the assertion that the laws are outdated because HIV is now a "manageable illness". The side effects for the newer drugs can be considerable, and we're only now getting the long range picture about what getting old with HIV looks like.
posted by availablelight at 7:51 PM on April 20, 2010 [3 favorites]

If there were similar laws for other comparable diseases, then I guess it would be reasonable.
posted by snofoam at 7:55 PM on April 20, 2010 [1 favorite]

availablelight : I do cringe at the assertion that the laws are outdated because HIV is now a "manageable illness".

I personally know 2 people that are going to die of AIDS in the next 6 months. One of them was just diagnosed 6 months ago.

What that means in terms of criminalization, I don't know. But it is still a fatal disease that does not have a cure.
posted by SLC Mom at 7:55 PM on April 20, 2010

That's insane. I understand the idea behind trying to destigmatize AIDS, but destigmatizing it to the point where people don't worry about infecting others doesn't seem like a good idea at all.

I understand the argument, if people worry about criminal liability for knowingly infecting others, then they won't get tested. But if they have HIV and don't get tested, then they obviously won't get treated, and then they'll catch AIDS and die. So it seems like there is plenty of incentive to get tested.
posted by delmoi at 7:55 PM on April 20, 2010 [1 favorite]

Snofoam: What diseases are comparable?
posted by SLC Mom at 7:57 PM on April 20, 2010

If there were similar laws for other comparable diseases, then I guess it would be reasonable.

Which other STDs have the same incurability and mortality? People aren't dying of syphilis anymore, HPV and herpes aren't really as lethal, as far as I know, and don't require such expensive drugs.
posted by delmoi at 7:59 PM on April 20, 2010

An interesting bit of background:

Many of the criminal transmission laws were written in the late 1980s when then-President Ronald Reagan called for the establishment of the President’s Commission on the Human Immunodeficiency Virus Epidemic. The commission encouraged states to write criminal laws to impose an “affirmative” responsibility on people who tested positive to disclose their HIV status to potential sex partners. There was a hook: Only states that created criminal penalties for exposure to and transmission of HIV received federal dollars for AIDS care and education.
posted by availablelight at 8:02 PM on April 20, 2010 [2 favorites]

SLC Mom, I'm just saying that if they weren't singling out HIV, then it could be reasonable and not just there to stigmatize certain people or lifestyles. By a comparable disease I'm thinking anything that is potentially fatal and incurable, not that I have particular diseases in mind that are exactly analogous to AIDS.
posted by snofoam at 8:02 PM on April 20, 2010 [1 favorite]

And in my last comment, I'm not saying that AIDS is a homosexual/IV drug user disease, but I am guessing that view led to the passage of those laws.
posted by snofoam at 8:06 PM on April 20, 2010

Actually, Snofoam, I agree. I just don't think there are any comparable diseases. Except maybe smallpox. And transmission of that is waaayyy more illegal than transmission of HIV.
posted by SLC Mom at 8:08 PM on April 20, 2010 [1 favorite]

I may just be a bit sheltered, but I'm surprised that there are (that many) laws specifically targeting HIV. Here in my own home state of Kansas, the relevant statute makes "exposing another to a life threatening communicable disease" a felony, and... well, that seems like a pretty logical thing to make a felony out of.
posted by ubernostrum at 8:22 PM on April 20, 2010

Yeah I'm just buying the "it's a virus not a crime" argument. HIV is a virus, but it causes a very serious, frequently fatal, and at best expensive to treat and chronic disease. Failing to disclose the fact that you are infected deprives the other person of the opportunity to make an informed decision in light of the risk.

That said, I'm probably open to the argument that it's unwise to start creating specialized laws for every crazy new disease that comes up, and that we should leave such things to the courts to hammer out rather than crafting ultra-specific legislation. That might leave the situation where someone failed to disclose their HIV infection to a partner but where the partner didn't get infected in the realm of civil torts rather than criminal law — the exposed partner could sue for the cost of their testing and emotional distress, the usual stuff, but not beyond that.

I feel like you could construct an analogous situation but, for lack of other diseases that are really similar to HIV/AIDS, you might have to imagine something like: say a person has a dog, and that dog gets bitten by a raccoon and becomes an asymptomatic carrier of rabies. (Which is not terribly common in dogs; it's more common in other animals, but let's assume that Fido has a really great immune system.) And that person decides that they're not going to tell anyone about Fido's little rabies problem. After all, all the other dogs down at the dog park are legally required to have their rabies shots, so it shouldn't be an issue. I could see this leading to negligence claims down the road, but would it be criminal out of the gate?

I have to imagine something like this has actually happened — probably more often than the AIDS scenario, if you delete the 'asymptomatic carrier' part and just concentrate on suspected rabies exposure in pets — yet we don't have specialized legislation to deal with it that I'm aware of. If your neighbor did let their rabies-infected-yet-asymptomatic dog run around at the dog park, we'd find a way of dealing with it through the traditional legal framework.

So it seems to me that legislators here have, as usual, tried to anticipate a need rather than respond to one, which is always a dangerous thing to have the legislature doing. I'd much rather have my innovation done in the courtroom, on a case-by-case basis, rather than in the legislature, far removed from the situation on the ground. But clearly the hordes of people who go running towards their elected representatives every time they see something on the news that upsets them feel differently, and it's no surprise when we get a lot of soothing special-case legislation as a result.
posted by Kadin2048 at 8:28 PM on April 20, 2010 [1 favorite]

Knowingly exposing someone to HIV should be manslaughter or at the very least criminal assault. It would be comparable to giving someone cancer or multiple sclerosis, in that the disease is a 24/7 maelstrom of anxiety, uncertainty, expense, drug side effects, and a potential ruination of any future sexual congress, and generally is still fatal. The idea that it is "controllable" is a shitty rationale for anyone to use to reduce punishment toward people who do this to others. Political correctness is an even worse reason.
posted by docpops at 8:28 PM on April 20, 2010 [2 favorites]

Whoops ... I meant "I'm just not buying" at the beginning there.

My kingdom for an edit window.
posted by Kadin2048 at 8:29 PM on April 20, 2010

HIV is a virus, not a crime.

I'm a little appalled at the editorial slant of this post. OF COURSE having HIV or AIDS is not a crime, but knowingly infecting others with either one is. There have been a few cases of people doing so — only a few, thank heavens, but still a few, and we need to be able to prosecute them.
posted by orange swan at 8:33 PM on April 20, 2010

Anyone who lived through the 1980s and 1990s and knew someone who died of AIDS or even knew someone who knew someone -- or even if they didn't know someone, whose only exposure personally was through the media, or movies, or books like And the Band Played On -- would have a hard time accepting the bald conclusion that there is no circumstance under which criminalizing the transmission of HIV is warranted.

However -- that's not what any of these linked items are arguing. Other than, maybe, the article by Dr. Zuger. Even in her case, she is not really saying simply that "HIV should never be criminalized." I disagree with the way that she dismisses the Chiacchia case, but then again, the only people who really know what happened in that case are Chiacchia and his ex-lover.

The Journal of the International AIDS Society article says, "Criminalisation is in general warranted only in cases where someone sets out, well knowing he has HIV, to infect another person, and achieves this aim." It does not say that knowingly transmitting HIV should not be punishable.

Jonathan Zimmerman writes, "The lone exception here might be the rare case where a particularly warped or troubled individual is actually attempting to spread HIV as widely as possible." He does not say that knowingly transmitting HIV should not be punishable.

The AVERT item says that "criminalisation for intentional transmission only" is "generally ... the sort of policy that most AIDS organisations, public health officials and civil rights groups favour." It does not say that knowingly transmitting HIV should not be punishable.

So I'm not getting the outrage, which seems to be directed at an assertion that nobody is even making.
posted by blucevalo at 8:39 PM on April 20, 2010 [1 favorite]

When I was three, I lived with my 21yr. old mother and my aunt, who was 19. She had a boyfriend named Greg. He and I would sing duets in the living room and sometimes he took me to Knott's Berry Farm. My mother and I moved out before my aunt and Greg broke up. Shortly after, he was in a car accident. Being a hemophiliac, his recovery involved many blood transfusions.

At some point, he was told he was HIV positive as a result of these transfusions. He kind of broke from reality a bit. He didn't tell anyone about his diagnosis. What he did do, however, was systematically reconnect with several of his exes in an attempt to pass on the disease that was going to shorten his life. When I was 7, my aunt Cathy and Greg started dating again. They broke up a year later when Greg, in a fit of anger, revealed his HIV+ status and coldly informed her that it was the reason he'd gotten back together with her - not because he wanted to be with her before he died, but because he wanted her to die too. These are roughly the words he used, I heard about it secondhand later, after Cathy died.

When I was 15, Cathy contracted opportunistic meningitis and for the next year was in and out of hospitals until she died in 1996 at the age of 33. I wasn't told she was HIV+ until shortly before she died, something that I don't think I've ever gotten over (I missed out on a lot of time I could have spent with her, had I known her hospitalizations were for a terminal illness and not for "headaches" and "chest trouble" as I'd been told).

About six months after her funeral, I was home alone after school one day when Greg's sister called looking for Cathy, because she'd found us in the phone book (we all had the same last name). She was in hysterics. She was calling to tell Cathy that she needed to get tested. It was clear to me that whoever this woman was, she dearly loved both her brother and my aunt and had no idea of what he'd done. I did tell her that Cathy had died. I did not say anything about what I knew about Greg. It was a tough phone call. She was a sweet person.

I'm sharing all of this because I don't know how I feel exactly about specific laws for intentionally infecting people with HIV - it seems like it's fairly well covered under manslaughter or murder laws. And if the infected plaintiff is one of the lucky ones who live quite awhile after their diagnosis and don't ultimately die of AIDS-related causes, I guess I think they do have the right to damages for medical costs and hardships, etc.

I guess I'm sharing all of this because even 15 years later, I don't think I've quite wrapped my head around the fact that the guy who used to belt out "Open Arms" with me in the living room decided that my Cathy, my idol, one of the most amazing people I've ever met (who I was lucky to be related to) deserved death for breaking up with him when they were barely 20.
posted by annathea at 9:07 PM on April 20, 2010 [44 favorites]

Which other STDs have the same incurability and mortality?

Hep C?

Interferon &tc. cocktails clear it in some people but not all, and lots and lots can't afford them or can't tolerate them.
posted by small_ruminant at 9:09 PM on April 20, 2010

Some1 : revenge is a useless, meaningless form of hate.

Agreed. We would do much better to quarantine people with incurable fatal infectious diseases. With any other, almost always much more visible, disease, we do exactly that. You get mumps, typhoid, ebola, inside the continental US? Welcome to your obligatory staycation until better or dead.

So why the hell do we let people with a mostly-invisible plague roam free?

And before anyone points out that modern treatments can keep it at bay for most of a normal lifetime - Would you consider it a crime if someone strapped an explosive collar around your neck, one that you could prevent from exploding simply by calling a phone number every morning?

Still a death sentence. You just get 50 years of appeals like any other Death Row inmate.


snofoam : If there were similar laws for other comparable diseases, then I guess it would be reasonable.

Other fatal contagious disease don't stay invisible for a decade while you infect potentially thousands of people.


blucevalo : So I'm not getting the outrage, which seems to be directed at an assertion that nobody is even making.

The very first link in the FP reads like the checklist of a rape-apologist talking to a six-year old idiot, applied to HIV. Does it surprise you that such an approach might raise some ire?
posted by pla at 9:10 PM on April 20, 2010

Here's a heartbreaking AskMeFi question from September 2007 about this very scenario.
posted by Asparagirl at 9:15 PM on April 20, 2010 [1 favorite]

Does it surprise you that such an approach might raise some ire?

It wouldn't surprise me if that were the only link that the OP contained.
posted by blucevalo at 9:18 PM on April 20, 2010

We would do much better to quarantine people with incurable fatal infectious diseases.

How would you propose that the one of every 40 people in the District of Columbia who have HIV/AIDS be quarantined? Or the one in 10 men in New York City who have sex with men? Or the one in 8 injection drug users in NYC? Where would you quarantine them that would simultaneously meet your definition of being barred from "roaming free" and also not raise a mass hysteria among the uninfected? Or would you just round them up in a camp somewhere in the desert, drop a tactical nuke on the bastards, and get it all over with?
posted by blucevalo at 9:32 PM on April 20, 2010 [2 favorites]

Stopping the spread of HIV-AIDS requires a lot more than just criminalising people who have it. Australia's public health response is generally held to be the gold standard around the world, and co-incidentally last week was the 25th anniversary of the roll-out of HIV testing in Australia.

From the above link:
Working closely with community groups, clinicians, and researchers, the Australian government determined to support the following radical measures in Australian public health policy to contain the threat posed by HIV/AIDS:
• peer-based, direct, and explicit preventive education campaigns directed both at high-risk groups and the general public
• widespread introduction of subsidized needle and syringe exchanges
• rapid expansion of methadone maintenance treatment
• access to free, anonymous, and universal HIV testing
• subsidized access to azidothymidine (AZT) and subsequent ARV treatment
• general advocacy of the need to adopt safer sexual practices, especially the use of condoms
• promotion of widespread availability of condoms
• creation of an enabling political environment that encouraged socially marginalized groups (IDUs, sex workers) to be involved in the national response
• removal of political and legislative barriers to enable effective preventive education and action—e.g., the passage of legislation to prevent discrimination on the grounds of sexual orientation or HIV status
• building of strong scientific and social research capacity and institutions

These policies were based on a number of basic principles:
• the need to minimize risk to the general population
• recognition of the importance to policymaking of empirical research and evidence—especially in the fields of epidemiology, clinical treatment, retrovirology, and the social sciences
• respect for human rights, buttressed as required by legislation
• collaboration and partnership between all stakeholders
• long-term over short-term thinking

(my emphasis)

Deliberately infecting someone with HIV is still a crime in Australia, usually 'endagering life' or 'recklessly endangering life'. But it's not the reason we have one of the lowest infection rates in the world (one-tenth of the infection rate of the USA).

(We also have a dirty little secret, one person who was kept under house arrest for 16 years because she was HIV-positive)
posted by girlgenius at 9:35 PM on April 20, 2010 [3 favorites]

pla: "So why the hell do we let people with a mostly-invisible plague roam free?"

On the off-chance you are serious, well, we let people with all sorts of blood-borne diseases "roam free" - because these diseases (unlike bigotry) are not spread by casual contact - and then we have laws like the ones described above to make extra-sure that people are careful.
posted by lupus_yonderboy at 9:45 PM on April 20, 2010 [2 favorites]

If you have HIV, know that you have HIV, and have sex with someone without them knowing ahead of time that you have HIV, that should be attempted murder. It's that simple. In some places it is, and good on them. Quarantine isn't really appropriate for something where the possibility of accidental transmission is pretty much nil.
posted by kafziel at 9:55 PM on April 20, 2010

blucevalo : Or would you just round them up in a camp somewhere in the desert, drop a tactical nuke on the bastards, and get it all over with?

Way to take a neutral statement of fact and blow it into yet another bout of "death camps" histrionics.

The logistics of it really don't much matter to me, only the end result. We quarantine others with serious contagious diseases, for the good of society. Why do we treat AIDS any different? Simply because it takes too long to die?

"Yeah, sorry sweetheart, if he had the mumps, with merely a modest risk of causing infertility in adult males, we'd have put him in a cage for a week; but HIV? What do you expect us to do with him - And now you - for the next 20 years?"

Or put another way, how do you propose keeping the 39 out of 40 people without HIV in the District of Columbia safe from a 100% preventable disease? We have no excuse except our culture's puritanical squeamishness with all things sex-related, for not stopping this plague now. We don't need to ever hear about a single additional infection... Except, well, what do you do with 1 in 40 residents of DC?


lupus_yonderboy : On the off-chance you are serious

Entirely.


well, we let people with all sorts of blood-borne diseases "roam free" - because these diseases (unlike bigotry) are not spread by casual contact

We do? Other than some strains of hepatitis (which we can cure in most people, and to which I would extend my suggestion of quarantine as an appropriate response to those who fail to respond to treatment) , I can't think of too many that both invariably kill and we can't cure them.
posted by pla at 10:10 PM on April 20, 2010

pla, so by your logic it's an effective life sentence for Nushawn William's "victims"? Because fuck me, they're not going to be cured in a week like it was mumps...

There's nothing like the same need to quarantine for HIV as it is nothing like as contagious as the diseases generally quarantined for - as mentioned upthread, the probability of accidental (or perhaps incidental) infection is essentially zero.
posted by Dysk at 11:28 PM on April 20, 2010

Agreed. We would do much better to quarantine people with incurable fatal infectious diseases. With any other, almost always much more visible, disease, we do exactly that. You get mumps, typhoid, ebola, inside the continental US? Welcome to your obligatory staycation until better or dead.

Except you can protect yourself 100% from HIV infection by not having sex or sharing injecting equipment with people who are HIV+. It's ridiculous to suggest that we deprive thousands and thousands of sick people of their liberty in order to save people from the bother of having to take responsibility for protecting themselves against contracting a thoroughly preventable disease.
posted by PeterMcDermott at 11:45 PM on April 20, 2010 [9 favorites]

We would do much better to quarantine people with incurable fatal infectious diseases. With any other, almost always much more visible, disease, we do exactly that. You get mumps, typhoid, ebola, inside the continental US? Welcome to your obligatory staycation until better or dead.

Cancer is a fatal disease, not always curable, and with viruses being responsible for up to 20% of cancers world-wide, perhaps you'd better quarantine the 26.8% of Americans who carry the human papilomma virus (responsible for cervical cancer), and those who carry the Human T-lymphotropic virus 1, about half as prevalent as HIV-AIDS in the US. And you should include the 50% of the world's population who are currently infected with Heliobacter pylori, strongly implicated as a cause of stomach cancer. You can't be too careful.
posted by girlgenius at 12:58 AM on April 21, 2010 [4 favorites]

Manslaughter & (attempted) murder aren't always enough to manage the situation. There was a case in Canada (not Cuerrier, which is the main case on the topic)¹ - guy has a reasonably long-term girlfriend, is unaware that he's HIV+. They have unprotected sex for months. He then later finds out that he's HIV+, I assume from an ex. Then he doesn't tell the new girlfriend and keeps having unprotected sex.

The problem is that she's almost certainly infected by now. But there can't be assault or attempted murder or anything, because when he infected her he didn't know he was doing so, and when he knew he wasn't infecting her (since she already had it).

This is the type of situation in which criminalization of HIV transmission is needed.

1. I can't remember the name of the case for the life of me. And I have a criminal law exam in...7 hours. Shit.
posted by Lemurrhea at 2:50 AM on April 21, 2010

Lemurrhea, no doubt that's a shitty thing to do, but ought it be criminal? As you say, he didn't intentionally infect her, and it isn't assault, it isn't manslaughter, isn't reckless endangerment. The particular set of circumstances you describe is a fucking human travesty, yes, but I don't agree that it should be a crime. Those situations where it ought to be criminal (frankly, I'm not entirely convinced of this either, but I'm not convinced entirely of the opposite either) are already covered by the three previously mentioned charges.
posted by Dysk at 3:52 AM on April 21, 2010

If you have HIV, know that you have HIV, and have sex with someone without them knowing ahead of time that you have HIV, that should be attempted murder. It's that simple
Really it is that simple?
Define what sort of sex spreads the HIV virus?
If someone is HIV+ and say they only suck a woman's breasts is that attempted murder?
Or if a HIV+ man only gets his balls licked is that attempted murder?
posted by halekon at 4:28 AM on April 21, 2010

Wow pla, I can't believe anyone is seriously suggesting anything so heartless and stupid on the blue. HIV+ people are actually real people. They actually have been brutalised, ignored and discriminated against for years. They actually exist in all of our communities and contribute and lead lives that matter as much as anyone else's. Their health is their business. So not only do we not have a moral or any other kind of right to lock up ordinary innocent people who, as noted above, pose virtually no danger to others except under specific, mostly avoidable circumstances, but it would be our great loss if we did - compounding the already staggering loss of those who the disease really has managed to take. I just think you have a responsibility to think through some things before you say them. Not everything is hey-let's-throw-it-out-there-and-see-what-happens material.
posted by two or three cars parked under the stars at 4:29 AM on April 21, 2010 [2 favorites]

We do? Other than some strains of hepatitis (which we can cure in most people, and to which I would extend my suggestion of quarantine as an appropriate response to those who fail to respond to treatment) , I can't think of too many that both invariably kill and we can't cure them.

MSRA?
posted by delmoi at 5:20 AM on April 21, 2010

Brother Dysk, that's a fair point. In my statement of This is the type of situation in which criminalization of HIV transmission is needed, I was using "needed" in the sense of it being a situation that is not covered by other laws.

Whether or not it should be a crime doesn't fall from the above statement. I'm honestly not sure if it should, and I probably lean towards it not being a crime - but my comment implied the opposite. Lazy writing/thinking on my part.
posted by Lemurrhea at 5:28 AM on April 21, 2010 [1 favorite]

delmoi: “MSRA?”

I think you mean MRSA.

It's not really comparable though. MRSA has been the panic disease du jour, but it's really only life-threatening under certain circumstances — like into a surgical wound, or deep bedsore, or puncture. If you're healthy and don't have any open cuts, you can (and I know people who have) get it as a very annoying, long-lived, but ultimately harmless skin infection.

The problem is that, especially if you're a healthcare provider, you can easily bring your "annoying skin rash" to someone for whom it becomes an extremely life-threatening systemic infection. Or it can be transmitted via inanimate objects: anything that two patients touch and isn't well-sanitized (door handles, stethoscope heads, etc.). Ironically, all the ways that people used to think they could get HIV but can't, they can get MRSA.

Perhaps most importantly though, unlike HIV, eventually a healthy person's body will clear MRSA and they can go back to work.
posted by Kadin2048 at 5:35 AM on April 21, 2010

There is a bit of circular trouble here. On the one hand, people don’t reveal that they have HIV because they’re worried about the stigma, on the other, when it finally is revealed for some reason that they’ve had HIV and known about it for a while, the image of the dangerous and uncaring HIV-positive person is strengthened.

There are two issues here, at least one of which there is good data about. Behavioral research shows that people who test positive for HIV change their behavior to be more safe. This is a robust finding, and one of the reasons that widespread HIV testing is an HIV-prevention strategy. So, in that sense, overall these laws seem a bit like they are in search of a problem. Of course, most people also don’t shoot people, but we have laws to criminalize it when it does occur.

On the other hand, I worked at an HIV clinic for many years. During that time we probably saw ~200 patients regularly. We diagnosed many more, but we saw for ongoing treatment about ~200 patients regularly. Many of those patients came to the clinic with STDs after they were diagnosed with HIV. We knew by self-report that at least 10 of those patients were in regular sexual relationships with partners who they had not told they were HIV positive. We had patients ask us to lie for them, we had patients meet someone, get engaged and get married, all without revealing that they were infected with HIV. It was not a negligible problem.
posted by OmieWise at 5:41 AM on April 21, 2010 [2 favorites]

hey. guns don't kill people; people kill people.

same argument, different weapon?
posted by msconduct at 6:05 AM on April 21, 2010

Wow, what a great post for my return to MeFi... Oh, how I've missed you crazy animals! :)
posted by antifuse at 7:07 AM on April 21, 2010

Oh hey, the case I mentioned above.

R v. Williams, 2003 SCC 41.
Charged with aggravated assault on the basis that he had sex with a woman, knowing he was HIV+. Sexual relationship started in June, found out that November. She became HIV+, but since it was possible she was already infected (likely, I would say), he was acquitted. Stands for the principle of contemporaneity in the physical and mental element.

To finish up my ranting about this scenario, the benefit of legislation to close this loophole is that from what I know, the earlier one finds out about being HIV+, the better one's health will be. So we need to make an incentive to disclose, even if they've likely been infected already. Still dunno if it's worth it.
posted by Lemurrhea at 7:23 AM on April 21, 2010

The logistics of it really don't much matter to me, only the end result.

I don't think that the end result really matters to you either. As long as it's as brutal and as inhumane as possible.
posted by blucevalo at 8:09 AM on April 21, 2010 [2 favorites]

When I was in high school (about 20 years ago), the school decided to install condom machines in the bathroom. Why? Because kids are going to have sex, and they preferred us to be safe rather than operate on some ideal hope that we would all wait until college. Still, our history professor suspended our studies to have a class discussion about condoms, HIV and school rules. One girl said, "I think we need to test all the people in the world. Anyone who tests positive, we put them on an island...called AIDSville." For the rest of the class, we discussed her quarantine idea (and the historic/legal implications of it). For the entire class, she insisted on calling it AIDSville. At 16, we all acknowledged her idea as both ridiculous and offensive. I never thought I would I see a similar idea here. *

* At 16, I already knew one person who had died of AIDS. Unfortunately I've known quite a few HIV+ people-some still with us, and some sadly not.
posted by miss-lapin at 9:14 AM on April 21, 2010 [3 favorites]

[comment removed - metatalk is an option if you need to talk about a particular member]
posted by jessamyn at 10:08 AM on April 21, 2010

snofoam: "If there were similar laws for other comparable diseases, then I guess it would be reasonable."

What other contagious, preventable diseases did you have in mind, snofoam?
posted by QIbHom at 10:22 AM on April 21, 2010

"If you have HIV, know that you have HIV, and have sex with someone without them knowing ahead of time that you have HIV, that should be attempted murder. It's that simple
Really it is that simple?
Define what sort of sex spreads the HIV virus?
If someone is HIV+ and say they only suck a woman's breasts is that attempted murder?
Or if a HIV+ man only gets his balls licked is that attempted murder?"
posted by halekon at 4:28 AM

neither of these will spread hIV. it only really survives well in blood and semen. even the old toilet seat thing is bullshit.
posted by marienbad at 10:26 AM on April 21, 2010

So why the hell do we let people with a mostly-invisible plague roam free?

For the same reason we let people with in-your-face bigotry roam free. Human rights, tolerance and compassion.
posted by stringbean at 10:27 AM on April 21, 2010 [8 favorites]

two or three cars parked under the stars : Wow pla, I can't believe anyone is seriously suggesting anything so heartless and stupid on the blue.

Yeah, much more compassionate to just let people keep getting infected with HIV and dying - Or pretending that people won't continue to have unprotected sex and hope the problem just goes away.


blucevalo : I don't think that the end result really matters to you either. As long as it's as brutal and as inhumane as possible.

Efficiency often looks like brutality to the ill-informed, but brutality does not in itself count as a desirable end result.
posted by pla at 10:30 AM on April 21, 2010

In WW2 we put all the Japanese-Americans into a camp on the off chance that there could be spies in the community. Arguments for the common good usually involve pretty brutal suspensions of the rights for the minority.

I suppose the next argument you will make is that we should tattoo everyone who has AIDS.
posted by Allan Gordon at 10:38 AM on April 21, 2010

I suppose the next argument you will make is that we should tattoo everyone who has AIDS.
posted by Allan Gordon at 10:38 AM on April 21

We could give each of them a number, and tattoo it on their arm. This would assist in recordkeeping. It is an efficient way to keep track of them.
posted by Optimus Chyme at 10:40 AM on April 21, 2010 [6 favorites]

[very seriously, take comment trawling and/or your right to do same to MetaTalk and not here.]
posted by jessamyn at 10:58 AM on April 21, 2010

MeTa
posted by hermitosis at 11:14 AM on April 21, 2010 [1 favorite]

Other fatal contagious disease don't stay invisible for a decade while you infect potentially thousands of people.

One can take an HIV test and learn if he/she has contracted the virus. Most HIV-infected people who know their status tend to lead healthy, fruitful and responsible lives managing the virus through medication, exercise and diet.
posted by ericb at 11:31 AM on April 21, 2010 [1 favorite]

funny, I think we should quarantine cars, they seems much more like dynamite strapped to the neck.
posted by edgeways at 11:35 AM on April 21, 2010

What other contagious, preventable diseases did you have in mind, snofoam?

Again, Hepatitis C. Anyone who tells you it's curable is lying. You can "clear" it (nearly always temporarily) in about half the people who undergo treatment (and, I presume, survive the treatment, which is brutal).

I have never understood why AIDS freaks people out and yet they dismiss Hepatitis C completely. It's spread the same way and kills people by the hundreds, and yet doctors rarely test for it, even in people who've been at risk. I read somewhere that there are an estimated 4 million in the US who have Hepatitis C but only 1 million have been diagnosed.
posted by small_ruminant at 11:47 AM on April 21, 2010

To be fair and dispassionate about it, the Ebola bit is an interesting comparison. Yeah, we would lock up twenty folks with the Big E in a twinkling. (Or, if you are particularly cynical, you would suspect that the government would just shoot them and say they bled out on the death certificate — it's accurate, if not exactly complete.) Now, HIV is hardly slow-motion Ebola, but it is not to be taken lightly.

However, that particular horse has left the barn, long ago. It doesn't matter what you think of HIV or how you get it. The history is tragic, tainted with Big Ron's refusal to acknowledge it and powered by outdated sexual squeamishness, but pointing a finger doesn't solve a single damn thing now.

Physical isolation is simply no longer feasible for the current situation in any practical sense. It could be effective when you have a handful of people in one little bunch, but after that, no way. Even if you could wave a magic wand and have 99.99% of people with HIV *bamf* off to some facility (magical construction of which is also included with your wand, which also suppresses empathy and makes your ethics about as firm as warm Silly Putty) you would still have enough people outside the box that you're just going to set yourself up for the next wave.

Prevent, treat, and find a freakin' cure. Humanity ought to be ashamed for dragging its collective feet here, and at least terrified; thirty years without a cure means that a really interesting (in the "may you live an ___________ life" sense) disease can clean our collective clocks in half a tick.
posted by adipocere at 11:51 AM on April 21, 2010

You get mumps, typhoid, ebola, inside the continental US? Welcome to your obligatory staycation until better or dead.

I would like to point out that Mr. Zizzle has always lived inside the continental US and had the mumps when he was a lad. He was neither quarantined nor required to have a staycation by forces other than his parents, crappy feeling, and doctor's advice.

He certainly didn't go to school, but he was pretty much only confined to his house because, well, the mumps kinda suck and make you feel bad. And his doctor told his parents how to manage it, but it doesn't seem like it even merited a call to the public health department. Certainly no one in hazmat suits descended upon his parents' house.

So, uhh...that comparison at least isn't probably all that useful to your point (and I'll refrain from saying anything here on exactly what I think of that point.)
posted by zizzle at 12:19 PM on April 21, 2010

I have never understood why AIDS freaks people out and yet they dismiss Hepatitis C completely. It's spread the same way and kills people by the hundreds

Actually, sexual transmission of Hepatitis C is considered to be rare, based on recent research. "The CDC does not recommend the use of condoms between long-term monogamous discordant couples (where one partner is positive and the other is negative)."

The idea of a quarantine for HIV positive individuals, though, is still just as asinine as it was back when LaRouche advocated for it in the 80s. Cuba--that bastion of human rights--is the only nation to have quarantined people with HIV. It ended the practice in 1993.
posted by availablelight at 1:12 PM on April 21, 2010

availablelight, that CDC quote is a little misleading (if not heteronormative). They consider penetrative vaginal sex to be a low-risk activity, but consider anal sex to be significantly higher risk.
posted by Dysk at 1:20 PM on April 21, 2010

availablelight, that CDC quote is a little misleading (if not heteronormative). They consider penetrative vaginal sex to be a low-risk activity, but consider anal sex to be significantly higher risk.

Thanks for pointing that out--I should have clarified that.
posted by availablelight at 1:27 PM on April 21, 2010

"Yeah, sorry sweetheart, if he had the mumps, with merely a modest risk of causing infertility in adult males, we'd have put him in a cage for a week; but HIV? What do you expect us to do with him - And now you - for the next 20 years?"

I did a bit of research on PLA's claims.

The CDC only has quarantine authority for certain diseases: "cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, and viral hemorrhagic fevers. It was amended in April 2003 to include SARS.". From the same fact sheet, "The last litigated case involving the involuntary quarantine of a passenger arriving into the United States occurred in 1963 and involved a suspected case of smallpox." The State of Oregon, as one example for where I could find good info, does not recommend quarantine except in certain cases, where staying home from work or school is considered appropriate. The state of Mass. seems to agree.

This is coming at an interesting time for me, as I am simultaneously reading a book about Typhoid Mary (quarantined for years as a healthy carrier of typhoid), a book about the spread of bubonic plague, and a book about modern pandemic threats. Just a passing interest of mine.

But at any rate, quarantine is not used nearly as frequently as pla pretends. It would be a great departure from the way we treat those suffering from infectious disease, not a consistent step, to pursue quarantine for HIV positive people. Further, as raised elsewhere (though unfortunately I can't find the comment to give proper credit, apologies), HIV is distinguishable from quarantined diseases in that mere proximity isn't sufficient to trigger transmission. Thus, even if we DID routinely quarantine for other disease - which we do not - HIV and AIDS are in a very different ballpark. Given the incurable nature of the disease, it would also be a more egregious invasion of personal autonomy. Again, even the short-term 'stay away from work and school' suggestions for mumps are during a period of about 20 days or less. Not a lifetime.

As debated well upthread, I support incentives to disclose, disclosure counseling and assistance. I do also support criminal prosecution for cases of deliberate transmission, but only where a high degree of recklesness or specific intent are present. Where there is some knowing endangerment.
posted by bunnycup at 2:44 PM on April 21, 2010 [5 favorites]

zizzle : I would like to point out that Mr. Zizzle has always lived inside the continental US and had the mumps when he was a lad. He was neither quarantined nor required to have a staycation by forces other than his parents, crappy feeling, and doctor's advice.
bunnycup : The CDC only has quarantine authority for certain diseases: "cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, and viral hemorrhagic fevers. It was amended in April 2003 to include SARS."

Honest mistake, I truly thought the US used quarantine as a standard response to mumps. However, lest you think I pulled that out of thin air:

Q: Should we quarantine exposed people?
A: Exclusion of susceptible students from schools/colleges affected by a mumps outbreak (and other, unaffected schools judged by local public health authorities to be at risk for transmission of disease) should be considered among the means to control mumps outbreaks. Once vaccinated, students can be readmitted to school. Students who have been exempted from mumps vaccination for medical, religious, or other reasons should be excluded until at least 26 days after the onset of parotitis in the last person with mumps in the affected school.

Obviously not quite as drastic or automatic as I had believed, but not totally imagined, either. Feel free, however, to substitute cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, and viral hemorrhagic fevers for my incorrect use of "mumps".
posted by pla at 3:38 PM on April 21, 2010

Even if it was humane and didn't violate people's rights for decades for no good reason and we wanted to quarantine people with HIV, it would still be stupid and expensive and ineffective. Why?

Because if you are going to quarantine people with it, people who think they might have it simply won't get tested. If that happens, you are going to *increase* the spread of the disease.

So, ok, now you force everyone to get tested. Now not only do you have even more civil rights issues, you have insane expense. And what do you do about the borders? And people who go abroad who might fuck someone over there and then come back? Now we're testing the whole adult population forcibly every six months.

Do you start to see why this makes no sense whatsoever even if we didn't give a shit about liberty and civil rights?
posted by Maias at 4:14 PM on April 21, 2010 [1 favorite]

As a gay man, it is very simple. If you are HIV+, you tell your prospective partner. It is then their decision whether or not to have sex with you. But that person MUST ask him. Some people don't even ask. I have always asked each partner I've had, and sometimes the reaction I get is so obvious it's uncomfortable. I understand the fear that if they say "Yes I am" they will feel that they will be rejected. But that goes with the territory. Some people can have a sexual relationship with someone who is HIV+, others can't. But the HIV+ person has a duty to tell his sexual partner. When he/she doesn't they should be criminalized and prosecuted. I've known far too many people in my life who have become infected by lying partners fearing being rejected. Well, then they can end up being rejected in prison for 5-10 years. The damage it causes an unsuspecting and uninformed partner is immense. Throw the book at them.

I have managed after 25 years of sexual activity to stay HIV-. But I had my 'scares', and I regularly tested. Every partner I had, I told them my last test was negative, which was one month ago, but there is always a risk. But if I was HIV+, I would absolutely tell any prospective partner. My fear of rejection would not even compare with my devastation if I infected someone. Obviously, others feel differently. And those people who have HIV+ who knowingly are putting their partners at risk should be arrested, and put in prison. They are a public menace. This goes on far too much, but most infectees are too embarassed to press charges. For those courageous enough to press charges, I give them my full support. Once HIV+ people realize that they will go to jail by not being honest and then begin to actually disclose their status to a prospective partner, the infection rate will go down.

Whether this affects testing, seeking help, is another thing, but I am firmly behind them being put away. Actually I'm for the death penalty in such cases, but some might find that extreme.
posted by WilliamMD at 4:27 PM on April 21, 2010

Maias : Because if you are going to quarantine people with it, people who think they might have it simply won't get tested. If that happens, you are going to *increase* the spread of the disease. So, ok, now you force everyone to get tested. Now not only do you have even more civil rights issues, you have insane expense.

Very good point, to which I don't have a good answer.

We clearly have a problem with the current "wishful thinking" approach, though. If everyone acted in good faith and became celibate on discovering^* they have HIV, we wouldn't need to have this discussion. If everyone always practiced safe sex, we wouldn't need to have this discussion.

Perhaps we just need a shift in the focus on using condoms, to making our partners prove they have a clean bill of health before we get jiggy - Basically shift the traditional test before marriage to a test before any sexual relationship. That would still leave a small window where a potentially contagious disease could get passed along due to not yet testing positive, but would limit the spread to at worst linear, rather than exponential. It also doesn't address the expense angle, but at least gets around the civil rights and logistics issues.

Of course, I don't seriously believe that would work any better (and probably worse) than condoms, but I for one would love to see a demand for a clean bill of health go from "never gonna get it" to both socially acceptable and expected.

^{* Unknown cases obviously present something of a problem here - Perhaps regular testing for a number of "invisible" disease such as HIV and Hep-C should occur as part of our annual physical, regardless of what we do with people once diagnosed}
posted by pla at 4:45 PM on April 21, 2010

Of course, I don't seriously believe that would work any better (and probably worse) than condoms, but I for one would love to see a demand for a clean bill of health go from "never gonna get it" to both socially acceptable and expected.

But now you're back in the realm of personal responsibility. Which is all it comes down to - we each have a responsibility to ourselves to not sleep with people whose sexual histories are a complete blank, and a responsibility to others to monitor our own health in such a way that we aren't unintentionally spreading a fatal disease. And if we choose to ignore that responsibility, the consequences are roughly the same as getting drunk and getting behind the wheel of a car and plowing it into another car and causing fatalities.

If we DO intentionally spread it, knowing we are infected, then it seems like we already have laws covering such an act. We call it manslaughter, if it results in death. Murder, if it can be proved that it was done with "malice aforethought".

But ultimately, what we're discussing here is personal responsibility, and how we want others to be as absolutely scrupulously responsible about themselves as possible, so that if we drop our guard for a minute and fail to protect ourselves, we can still minimize risk. It just doesn't work that way. My aunt died of intentionally-inflicted HIV-related causes when I was at the beginning of my own sexual life, and the one thing that was patently clear to me from the outset was that I could ask every prospective partner point-blank if they'd been tested, and all that had to happen for me to be in the same situation as Cathy was for them to lie. And even at that age I understood that it wouldn't be the kind of lie where they knew right in the forefront of their consciousness that they were doing it. Denial, as they say, is a powerful thing. And I think people can easily tell themselves "Well, I might have gotten a positive back on that last test, but I don't believe it. They tested me wrong. Or I can't pass it along because I'm taking medication and the virus levels are undetectable! So I'm not really positive, and I can't infect anyone."

There's no single overarching act that can work around that fundamental flaw in human thinking.
posted by annathea at 6:58 PM on April 21, 2010 [1 favorite]

pla, if you agree that your proposal is unfeasable, you'll agree that it certainly isn't efficient? (Maias did a good job of explaining it, as I notice you saw).

I'm going to quote you from earlier in this thread, responding to people calling your methods 'brutal' (and more):

Efficiency often looks like brutality to the ill-informed, but brutality does not in itself count as a desirable end result.

...but we're agreed now that your earlier position doesn't reflect efficiency, yes? Your earlier suggestions were quite harsh and inhumane, and without much of the utilitarian benefit you claimed for it. To me, this does look rather like brutality, and it is is very easy (though not necessarily right) to conclude from there that it's a hateful position - why else be harsh and inhumane unnecessarily?

People reacted very strongly to your ideas for a reason, and it's not just because they are against the groupthink.
posted by Dysk at 12:32 AM on April 22, 2010 [1 favorite]

Perhaps we just need a shift in the focus on using condoms, to making our partners prove they have a clean bill of health before we get jiggy - Basically shift the traditional test before marriage to a test before any sexual relationship.

It astounds me how many people *don't* do this. I'm married now, but before I was married, with EVERY sexual partner I had, it was always condoms every time. Once things started getting serious, we both got tested before deciding to go the pill-only route for birth control.
posted by antifuse at 5:56 AM on April 29, 2010